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Rape, sexual assault, college campuses, and burdens of proof

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Posts

  • MrMisterMrMister A pup must first get in the water to be successful as a seal!Registered User regular
    ronya wrote: »
    this sort of thing seems like the sort of problem law students study in college

    but it does happen, and graphically illustrates the problem with ambiguity when defining rape in the criminal code

    there are some more fun (?) thought experiments here

    that first one doesn't seem like a very ambiguous case at all

    No. Also, it's from 1992 and even then everyone involved thought the grad jury's decision was bizarre.

    I am intrigued by the law article, but don't have the time to read it atm.

    Apothe0sis
  • PaladinPaladin Registered User regular
    Paladin wrote: »
    Paladin wrote: »
    Legislating the type of intercourse you have is super weird and scary

    But what is still fuzzy is how do you say something happened and not expect to have to prove it - unless the other party is expected to have an airtight recount of events that makes it obvious what you say is impossible. And then you'd have to prove it.

    Again, you're assuming cold blooded serial rapist.

    As opposed to "dumb teenager who doesn't understand that what he's doing is wrong."

    Why did the Stubenville rapists distribute video of themselves committing gang rape? Because they didn't realize that gang rape was wrong.

    In cases like this, the person doesn't have to "prove" that consent occurred. And he'll probably have no qualms with lying. But if he's too dumb to figure out that distributing video yourself gang raping a passed out girl is a bad idea, then he's probably too dumb to make up a lie that sounds consistent and believable. Again, this doesn't apply to the cold blooded social path.

    How is this different from the old system? Because under the old system, they wouldn't have to lie most of the time. All he would have to say was, "I assumed she was into it," and the idiot would be so full of his own self-delusion that he would probably believe it. He also wouldn't need a reason to believe it beyond "she never said no." Under the new system, that's no longer good enough, and his self-delusion can bite him in the ass.

    In the real world, the vast majority of criminals are dumb.

    Can consent really be assumed of an unconscious person in the current system?

    Unless the girl was roofied, chances are she didn't go unconscious right away.

    And that gives potential rapists a lot of leeway to work with. Get the girl liquored up, and then start groping her.

    Oh, she isn't resisting? Well, she still hasn't officially passed out yet, so it must be because she's into him, and not because she's too drunk to fend him off.

    Can consent be assumed of someone with altered mental status? This thread was wishy washy on that so I really don't know, and Google isn't helping.

    Marty: The future, it's where you're going?
    Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
  • GoumindongGoumindong Registered User regular
    @Schrodinger . You gonna talk about how shitty that misrepresentation of your's was, or what?

    Override said that there shouldn't be cases where people are jailed for distributing child pornography of themselves.

    I pointed to a very famous, very recent case relevant to this thread where they should be.

    Sodomy laws are bad are bad in general. If Jeffrey Dahmer commits sodomy, he should be convicted of murder, not sodomy. Because sodomy laws are bad.

    But Stubenville teenagers being charged with child pornography? Perfectly valid.

    The Stubenville teenagers were not jailed for making child pornagraphy of themselves. They were jailed for making child pornography of their victim.

    I mean ok technically we got them on the child porn charge but really that isn't why we as a soociety or we as a group of people discussing it are OK with it. We're OK with getting them on the charge because they made and distributed it without consent of the victim.

    I don't see how you could somehow leave out the fact that any reasonable law which would not prosecute a person for making porn of themselves would still have picked them up because one of the participants was unwilling and did not consent to distribution.

    This is why your statement was fundamantally dishonest.
    Goumindong wrote: »
    Ok so how does changing the statute effect these things which are already illegal by the current statue for which you are justifying the new one?

    Old law says that sex has to be consensual.

    New law clarifies that consent has to be affirmative, voluntary, and conscious, for anyone who didn't understand it before.

    "Affirmative" as opposed to "negative." Which means it's based on what she does, and not one what she didn't do.

    Also, it doesn't require that the accused party provide any form of evidence or proof to back up the fact this actually happened. Which means the claims on how it shifts the burden are all bunk.

    Which part of that do you disagree with?

    Or do you have another excerpt of the law that you would like to discuss?

    Remember the Obamacare debate, when Sarah Palin claimed that there were death panels? And then just to shut her up, Obama had to write a clarification saying this wouldn't happen. And then the right wing jumped on this and said, "Aha, this proves that there were death panels! Otherwise, why bother revising Obamacare?" Well this is pretty much the same deal. The purpose of Affirmative Consent law is to clarify the idea of consent to people who didn't understand what it meant (including people who worked in law enforcement). No one can actually point to anything that the law is doing wrong, so the only thing they can complain about is the fact that the clarification exists at all.

    So either a: you didn't read the law you're linking all over the place or b "it won't change anything" Is your answer?

    Because the law you keep linking to states explicitly that burden is to be shifted to a preponderance of evidence. But the post here seems to indicate that "the law as practiced will be exactly the same". So either we are ignoring the law and it's change to a preponderance of evidence or we are talking about the hypothetical law wherin you still haven't explained what situations this will make illegal that aren't already illegal, if it's not going to prosecute those "flubbed first kisses".
    rockrnger wrote: »
    Apothe0sis wrote: »
    rockrnger wrote: »
    Apothe0sis wrote: »
    So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?

    The whole idea is that since
    Pony wrote: »
    Apothe0sis wrote: »
    So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?

    This is a long answer question, but the short answer to it is basically that it creates an environment where people who have been assaulted don't have to substantiate that they refused. In the previous system, "Did you actually say no?" was a pretty standard question both from the police, and a very standard part of the defense of rapists in court.

    The old model put the onus on the assaulted person.

    The affirmative consent model puts the onus on the accused to substantiate that they had the accuser's consent, and to explain how. That has to hold up to scrutiny. This means under the affirmative consent model it is the accused who is scrutinized, not the accuser. The accuser is stating they did not consent, and that they either made this expressly or implicitly known to the accused or that they consented under duress (which is not really consent, under the law). The accused basically has to state that the accuser is lying (in the case of express refusal) or state how they did not understand the accuser's implicit lack of consent.

    Under the old model, this implicit lack of consent and the accused's failure to understand it would be sufficient argument to create doubt and could result in a rapist going free.

    Under the affirmative consent model, this implicit lack of consent and the accused's failure to understand it is not an excuse, because it is considered the responsibility of the person trying to initiate sexual conduct to obtain consent. If there was doubt or failure to understand an implicit lack of consent, that failure is considered the accused's, not the accuser's, to clarify.

    Which is why I stress clarity and communication, people.

    But then wouldn't teaching people that they can say no and that they ought to be sensitive to a no and when a rape gets reported to sit the accused down and grill them about whether or not the person refused in any way effect the same kind of result?

    I mean, maybe not, I certainly don't know enough about psychology to say with any authority.

    I think that some of the reticence here hasn't been from people who are necessarily worried about first kisses (though I recognize that this has been an issue for some), but rather that the only thing that an affirmative consent law allows for prosecution for which a well enforced no-means-no with a culture more open to sexuality doesn't is these silly cases.

    I don't think that anyone is necessarily against changing our culture in the US to be one where communication happens more, and where people are more sensitive to the signals and cues of others but where people aren't afraid to say something. I think that nearly everyone wants there to be a cultural shift and for more rapes to be prosecuted. It seems like everyone thinks that a cultural shift like that is only going to make things better.

    What has not be articulated to some people's satisfaction seems to be why specifically a well enforced affirmative consent is better than a well enforced no-means-no provided you have that open culture. Which rapes would not prosecuted by a no-means-no?

    Every example seems to turn on some sort of coercion or use of force (or possibly threat of force). Those would be prosecuted under either legal standard, well enforced. So what cases require the affirmative consent law?

    I think something else that is making the discussion confusing for some or frustrating is there is a lot of slipping back and forth between what ought to be prosecuted as rape in court, and what we ought to consider rape external to any legal framework. For example, I've never participated in a rape prosecution, though I was certainly raped once, and possibly many many times (depending on how we define this slippery implied consent in long term relationships).

    Speaking of this implied consent, that seems to be another source of confusion and frustration. Because it's not clear what counts as consent for affirmative consent. When I say not clear, I do not mean that no one has articulated what the standard is, but rather, I'm not sure that some understand what sort of implied consent is okay. This has led to a lot of the responses about how rapists will just talk about the implied affirmatives that they got, rather than the implied non-negatives that they got. So it seems like affirmative consent doesn't help us there. If taken to solely back explicit consent, then affirmative consent is clear, but certainly not what anyone seems to be arguing here. Perhaps some elucidation of how implied consent is assessed or ought to be assessed under affirmative consent would be helpful.

    I've largely been just reading this thread, as I don't really have a dog in this fight. Well, I do, I just don't know which one it is. Or if it's even represented so far. I think that there are some compelling arguments being made by many people, and these are just some of my observations from being as much of an outside observer as I can be.

    Ok, so the main attraction of the change is that now even if we were somehow able to 100 verify every fact of a case it would still be extremely hard to prove that accused hadn't honestly and reasonably mistaken say drunken moaning for consent or frighten freezing up for playing coy or whatever.

    With the new standard the defendant would have to show that it wasn't just reasonable to think consent was there they would also have to show it was clear and consciously given which is harder to mistake. Of course all the same standards of evidence and presumption of innocence and whatnot still applies.

    Again, the idea isn't so much to stop people from doing stuff or change to culture (tho some people disagree) or even to bring a case that wouldn't have been illegal under the old definition (it's going to be impossible to prove anyway). It's to make easier to prosecute. (It's a Balancing act, economy, yadda yadda yadda)
    So to bring you back to your own challenge - what's an example of a case in which this would come into play that would be successfully prosecuted under the affirmative consent model of consent, and but not the no-means-no model of consent?

    The most basic one is a man is extremely drunk (as supported by a tox screen or whatever) and raped by a woman. Under the current standard the defense could say that he had a erection or was moaning or whatever and that the defendant reasonably and honestly thought that that indicated Consent even though it was physically impossible for consent to be given.

    The new standard would force them to either give up that defense and dispute the tox screen or try to make the case that something that could reasonably be thought clear and consciously given could come out of someone that drunk which is much harder.

    You can do the same with fear. A reasonable person could mistake fear induced compliance for consent (or at enough for reasonable doubt) but clear and conscious? Not as easy. That changes the defense from the accuser is sincere but didn't communicate well to the accuser is lying which places some extra explanatory burden on the defense. Not enough by its self of course but with some extra evidence it would preach.

    Incorrect. Coercion and incapacity to consent are still considered rape/sexual assault under the current law.

    wbBv3fj.png
    Lord_AsmodeusApothe0sisspacekungfumanElvenshaeJuliusAgahnim
  • SchrodingerSchrodinger Registered User regular
    Indeed in the Stubenville case I will explicitly say they should not be prosecuted for child porn in that situation. I think laws should be specific and clear so they can not be interpreted in ridiculous and unhelpful ways.

    How is that a ridiculous interpretation of the law?

    They distributed pornography of an exploited minor that she was unable to consent to, for their own personal gratification and for her humiliation. That's not an unintended side effect. That's the very definition of what the law was designed for.
    Even discounting any child porn charges, they still performed a rape which is a crime, they recorded and distributed the evidence of something which is a crime, and their doing so even sans child porn charges would I believe itself be a crime because of the nature of the recordings. Those are the crimes for which they should be accountable, and I think tacking on child porn charges is not necessary. I've never been a fan at taking every possible crime someone might have committed and throwing them all against them in the hopes that either you get the highest sentence possible or at least something will stick.

    Gang rape victim is not only gang raped, but she has the further humiliation of knowing that her peers have watched the videos and seen the photos. She can't simply pretend it didn't happen (as rape victims often do). She's forced to deal with the humiliation afterwards.

    To me, these are two separate crimes against the same person that require two separate charges.

  • PaladinPaladin Registered User regular
    Oh OK

    BTW, are there degrees of rape charges, like there are of murder? Cause if not I think there should be.

    Marty: The future, it's where you're going?
    Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
  • rockrngerrockrnger Registered User regular
    edited June 2015
    Goumindong wrote: »
    @Schrodinger . You gonna talk about how shitty that misrepresentation of your's was, or what?

    Override said that there shouldn't be cases where people are jailed for distributing child pornography of themselves.

    I pointed to a very famous, very recent case relevant to this thread where they should be.

    Sodomy laws are bad are bad in general. If Jeffrey Dahmer commits sodomy, he should be convicted of murder, not sodomy. Because sodomy laws are bad.

    But Stubenville teenagers being charged with child pornography? Perfectly valid.

    The Stubenville teenagers were not jailed for making child pornagraphy of themselves. They were jailed for making child pornography of their victim.

    I mean ok technically we got them on the child porn charge but really that isn't why we as a soociety or we as a group of people discussing it are OK with it. We're OK with getting them on the charge because they made and distributed it without consent of the victim.

    I don't see how you could somehow leave out the fact that any reasonable law which would not prosecute a person for making porn of themselves would still have picked them up because one of the participants was unwilling and did not consent to distribution.

    This is why your statement was fundamantally dishonest.
    Goumindong wrote: »
    Ok so how does changing the statute effect these things which are already illegal by the current statue for which you are justifying the new one?

    Old law says that sex has to be consensual.

    New law clarifies that consent has to be affirmative, voluntary, and conscious, for anyone who didn't understand it before.

    "Affirmative" as opposed to "negative." Which means it's based on what she does, and not one what she didn't do.

    Also, it doesn't require that the accused party provide any form of evidence or proof to back up the fact this actually happened. Which means the claims on how it shifts the burden are all bunk.

    Which part of that do you disagree with?

    Or do you have another excerpt of the law that you would like to discuss?

    Remember the Obamacare debate, when Sarah Palin claimed that there were death panels? And then just to shut her up, Obama had to write a clarification saying this wouldn't happen. And then the right wing jumped on this and said, "Aha, this proves that there were death panels! Otherwise, why bother revising Obamacare?" Well this is pretty much the same deal. The purpose of Affirmative Consent law is to clarify the idea of consent to people who didn't understand what it meant (including people who worked in law enforcement). No one can actually point to anything that the law is doing wrong, so the only thing they can complain about is the fact that the clarification exists at all.

    So either a: you didn't read the law you're linking all over the place or b "it won't change anything" Is your answer?

    Because the law you keep linking to states explicitly that burden is to be shifted to a preponderance of evidence. But the post here seems to indicate that "the law as practiced will be exactly the same". So either we are ignoring the law and it's change to a preponderance of evidence or we are talking about the hypothetical law wherin you still haven't explained what situations this will make illegal that aren't already illegal, if it's not going to prosecute those "flubbed first kisses".
    rockrnger wrote: »
    Apothe0sis wrote: »
    rockrnger wrote: »
    Apothe0sis wrote: »
    So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?

    The whole idea is that since
    Pony wrote: »
    Apothe0sis wrote: »
    So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?

    This is a long answer question, but the short answer to it is basically that it creates an environment where people who have been assaulted don't have to substantiate that they refused. In the previous system, "Did you actually say no?" was a pretty standard question both from the police, and a very standard part of the defense of rapists in court.

    The old model put the onus on the assaulted person.

    The affirmative consent model puts the onus on the accused to substantiate that they had the accuser's consent, and to explain how. That has to hold up to scrutiny. This means under the affirmative consent model it is the accused who is scrutinized, not the accuser. The accuser is stating they did not consent, and that they either made this expressly or implicitly known to the accused or that they consented under duress (which is not really consent, under the law). The accused basically has to state that the accuser is lying (in the case of express refusal) or state how they did not understand the accuser's implicit lack of consent.

    Under the old model, this implicit lack of consent and the accused's failure to understand it would be sufficient argument to create doubt and could result in a rapist going free.

    Under the affirmative consent model, this implicit lack of consent and the accused's failure to understand it is not an excuse, because it is considered the responsibility of the person trying to initiate sexual conduct to obtain consent. If there was doubt or failure to understand an implicit lack of consent, that failure is considered the accused's, not the accuser's, to clarify.

    Which is why I stress clarity and communication, people.

    But then wouldn't teaching people that they can say no and that they ought to be sensitive to a no and when a rape gets reported to sit the accused down and grill them about whether or not the person refused in any way effect the same kind of result?

    I mean, maybe not, I certainly don't know enough about psychology to say with any authority.

    I think that some of the reticence here hasn't been from people who are necessarily worried about first kisses (though I recognize that this has been an issue for some), but rather that the only thing that an affirmative consent law allows for prosecution for which a well enforced no-means-no with a culture more open to sexuality doesn't is these silly cases.

    I don't think that anyone is necessarily against changing our culture in the US to be one where communication happens more, and where people are more sensitive to the signals and cues of others but where people aren't afraid to say something. I think that nearly everyone wants there to be a cultural shift and for more rapes to be prosecuted. It seems like everyone thinks that a cultural shift like that is only going to make things better.

    What has not be articulated to some people's satisfaction seems to be why specifically a well enforced affirmative consent is better than a well enforced no-means-no provided you have that open culture. Which rapes would not prosecuted by a no-means-no?

    Every example seems to turn on some sort of coercion or use of force (or possibly threat of force). Those would be prosecuted under either legal standard, well enforced. So what cases require the affirmative consent law?

    I think something else that is making the discussion confusing for some or frustrating is there is a lot of slipping back and forth between what ought to be prosecuted as rape in court, and what we ought to consider rape external to any legal framework. For example, I've never participated in a rape prosecution, though I was certainly raped once, and possibly many many times (depending on how we define this slippery implied consent in long term relationships).

    Speaking of this implied consent, that seems to be another source of confusion and frustration. Because it's not clear what counts as consent for affirmative consent. When I say not clear, I do not mean that no one has articulated what the standard is, but rather, I'm not sure that some understand what sort of implied consent is okay. This has led to a lot of the responses about how rapists will just talk about the implied affirmatives that they got, rather than the implied non-negatives that they got. So it seems like affirmative consent doesn't help us there. If taken to solely back explicit consent, then affirmative consent is clear, but certainly not what anyone seems to be arguing here. Perhaps some elucidation of how implied consent is assessed or ought to be assessed under affirmative consent would be helpful.

    I've largely been just reading this thread, as I don't really have a dog in this fight. Well, I do, I just don't know which one it is. Or if it's even represented so far. I think that there are some compelling arguments being made by many people, and these are just some of my observations from being as much of an outside observer as I can be.

    Ok, so the main attraction of the change is that now even if we were somehow able to 100 verify every fact of a case it would still be extremely hard to prove that accused hadn't honestly and reasonably mistaken say drunken moaning for consent or frighten freezing up for playing coy or whatever.

    With the new standard the defendant would have to show that it wasn't just reasonable to think consent was there they would also have to show it was clear and consciously given which is harder to mistake. Of course all the same standards of evidence and presumption of innocence and whatnot still applies.

    Again, the idea isn't so much to stop people from doing stuff or change to culture (tho some people disagree) or even to bring a case that wouldn't have been illegal under the old definition (it's going to be impossible to prove anyway). It's to make easier to prosecute. (It's a Balancing act, economy, yadda yadda yadda)
    So to bring you back to your own challenge - what's an example of a case in which this would come into play that would be successfully prosecuted under the affirmative consent model of consent, and but not the no-means-no model of consent?

    The most basic one is a man is extremely drunk (as supported by a tox screen or whatever) and raped by a woman. Under the current standard the defense could say that he had a erection or was moaning or whatever and that the defendant reasonably and honestly thought that that indicated Consent even though it was physically impossible for consent to be given.

    The new standard would force them to either give up that defense and dispute the tox screen or try to make the case that something that could reasonably be thought clear and consciously given could come out of someone that drunk which is much harder.

    You can do the same with fear. A reasonable person could mistake fear induced compliance for consent (or at enough for reasonable doubt) but clear and conscious? Not as easy. That changes the defense from the accuser is sincere but didn't communicate well to the accuser is lying which places some extra explanatory burden on the defense. Not enough by its self of course but with some extra evidence it would preach.

    Incorrect. Coercion and incapacity to consent are still considered rape/sexual assault under the current law.

    Very true but the accused can make a mistake of fact defense that they had a reasonable honest belief that there was consent and the defense has to prove there wasn't beyond a reasonable doubt.

    It just becomes harder under the new system because the consent has to be clear and consciously given.

    Edit: so the mistake of fact has to be of clear and consciously given consent which is much harder to mistake.

    rockrnger on
  • GoumindongGoumindong Registered User regular
    So no change then?
    Indeed in the Stubenville case I will explicitly say they should not be prosecuted for child porn in that situation. I think laws should be specific and clear so they can not be interpreted in ridiculous and unhelpful ways.

    How is that a ridiculous interpretation of the law?

    They distributed pornography of an exploited minor that she was unable to consent to, for their own personal gratification and for her humiliation. That's not an unintended side effect. That's the very definition of what the law was designed for.
    Even discounting any child porn charges, they still performed a rape which is a crime, they recorded and distributed the evidence of something which is a crime, and their doing so even sans child porn charges would I believe itself be a crime because of the nature of the recordings. Those are the crimes for which they should be accountable, and I think tacking on child porn charges is not necessary. I've never been a fan at taking every possible crime someone might have committed and throwing them all against them in the hopes that either you get the highest sentence possible or at least something will stick.

    Gang rape victim is not only gang raped, but she has the further humiliation of knowing that her peers have watched the videos and seen the photos. She can't simply pretend it didn't happen (as rape victims often do). She's forced to deal with the humiliation afterwards.

    To me, these are two separate crimes against the same person that require two separate charges.

    Can you stop being disengenuous for one second?

    You said Steubenville were charged for making pornography of themselves. Asmo said "people should not be charged for making pornograpghy of themselves". So then you said "well I guess you want the Steubenville rapists free then" and asmo said " no but they should not have been charged for making porn of themselves. To which you replied that they were not charged for such an act...

    wbBv3fj.png
    AntinumericspacekungfumanElvenshaeAgahnim
  • Lord_AsmodeusLord_Asmodeus goeticSobriquet: Here is your magical cryptic riddle-tumour: I AM A TIME MACHINERegistered User regular
    edited June 2015
    Indeed in the Stubenville case I will explicitly say they should not be prosecuted for child porn in that situation. I think laws should be specific and clear so they can not be interpreted in ridiculous and unhelpful ways.

    How is that a ridiculous interpretation of the law?

    They distributed pornography of an exploited minor that she was unable to consent to, for their own personal gratification and for her humiliation. That's not an unintended side effect. That's the very definition of what the law was designed for.
    Even discounting any child porn charges, they still performed a rape which is a crime, they recorded and distributed the evidence of something which is a crime, and their doing so even sans child porn charges would I believe itself be a crime because of the nature of the recordings. Those are the crimes for which they should be accountable, and I think tacking on child porn charges is not necessary. I've never been a fan at taking every possible crime someone might have committed and throwing them all against them in the hopes that either you get the highest sentence possible or at least something will stick.

    Gang rape victim is not only gang raped, but she has the further humiliation of knowing that her peers have watched the videos and seen the photos. She can't simply pretend it didn't happen (as rape victims often do). She's forced to deal with the humiliation afterwards.

    To me, these are two separate crimes against the same person that require two separate charges.

    1. The law does not specify that the person in the child porn be unwilling as well as underage, and that's a large part of the problem. That may be the intent but it is poorly realized. As it is, anyone below the age of consent who takes a nude picture of themselves or a picture of themselves engaging in consensual sex with another minor is guilty
    2. If it's not already illegal to distribute pornography of a rape victim, it would be more helpful to make that illegal than to allow child porn laws to remain overly broad

    because while you might feel that them being charged with child porn was totally in line with the intent of the law, the overly broad way child porn laws are written still lead to situations like these:

    http://www.salon.com/2015/04/01/“it’s_making_a_strong_statement”_cop_charges_four_teens_with_felony_child_pornography_to_teach_them_a_lesson/

    http://www.cbsnews.com/news/sexting-leads-to-child-porn-charges-for-teens/

    It also demonstrates why I'm generally opposed of having overly broad laws and leaving discretion for arrests, charging and sentencing in the hands of the criminal justice system. I don't trust them to not abuse the overly broad nature of laws.

    Lord_Asmodeus on
    Lord_Asmodeus.gifLord_Asmodeus2.gifz1i30sg.png
  • SchrodingerSchrodinger Registered User regular
    Goumindong wrote: »
    The Stubenville teenagers were not jailed for making child pornagraphy of themselves. They were jailed for making child pornography of their victim.

    That would have been true if not for the fact that they were on the video themselves, and the point of distributing the video was to show off their own participation in the incident.
    Because the law you keep linking to states explicitly that burden is to be shifted to a preponderance of evidence.

    Yes, for education codes, not for criminal law.
    Incorrect. Coercion and incapacity to consent are still considered rape/sexual assault under the current law.

    And how exactly does one gauge whether or not those terms have been met?

    For coercion, what happens if the girl is scared of being harmed if she resists, even in the absence of a physical threat?

    With incapacity, how does the prosecution prove a negative, unless she was literally passed out (and therefore unable to testify) ?

  • rockrngerrockrnger Registered User regular
    No, big change.

    Old system: consent

    New system: consent clear and couscous.

    So a very inebriated person could be reasonably be thought to be giving consent even tho they were unable to understand the consequences of their actions but could they do so in a way that could reasonably be thought to be clear and conscious? Not really.

  • PaladinPaladin Registered User regular
    I know how to prove capacity in a medicolegal sense, but my definition would be a buzz kill for everybody

    Marty: The future, it's where you're going?
    Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
    Elvenshae
  • GoumindongGoumindong Registered User regular
    edited June 2015
    Goumindong wrote: »
    The Stubenville teenagers were not jailed for making child pornagraphy of themselves. They were jailed for making child pornography of their victim.

    That would have been true if not for the fact that they were on the video themselves, and the point of distributing the video was to show off their own participation in the incident.

    That fact is fucking irrelevant unless you're searching for a way to be a shit to someone else in the discussion. Just like the fact that they are males is irrelevant to the fact that they raped someone.

    I mean literally the conversation works just as logically like so

    person 1: I don't think we should put people in prison for being male
    Schrodinger: Hitler was male! I guess you support hitler!
    Person 2: I don't think hitler should be thrown in jail for being male either
    Schrodinger: but the holocaust!

    Edit: I mean literally you said "you don't support putting people in jail for making child porn of themselves? I guess you support people who make child porn of unwilling people and people who are unwilling to consent and also then distribute that material without their consent."

    It's bonkers.

    Wrt: the rest

    Follow the conversation please. It Was quoted there and you're multi-quoting so clearly you're on a device which lets you go through the thread and the tree.

    Goumindong on
    wbBv3fj.png
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  • GoumindongGoumindong Registered User regular
    rockrnger wrote: »
    No, big change.

    Old system: consent

    New system: consent clear and couscous.

    So a very inebriated person could be reasonably be thought to be giving consent even tho they were unable to understand the consequences of their actions but could they do so in a way that could reasonably be thought to be clear and conscious? Not really.

    Name a situation which would be consent under the old law and not consent under the new law for which a conviction is possible under the supposed standard of evidence.

    We are all on board with changing social norms (well except spacekungfuman but I suspect he does not quite grasp the depth of the change that implies). We aren't on board necessarily with changing the law yet.

    Because as it stands yall keep going back to the "drunk" example and well. Inebriated people cannot give consent under the current law so it clearly doesn't change anything there.

    wbBv3fj.png
  • ronyaronya Arrrrrf. the ivory tower's basementRegistered User regular
    Couscous is delicious.

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  • rockrngerrockrnger Registered User regular
    edited June 2015
    Goumindong wrote: »
    rockrnger wrote: »
    No, big change.

    Old system: consent

    New system: consent clear and couscous.

    So a very inebriated person could be reasonably be thought to be giving consent even tho they were unable to understand the consequences of their actions but could they do so in a way that could reasonably be thought to be clear and conscious? Not really.

    Name a situation which would be consent under the old law and not consent under the new law for which a conviction is possible under the supposed standard of evidence.

    We are all on board with changing social norms (well except spacekungfuman but I suspect he does not quite grasp the depth of the change that implies). We aren't on board necessarily with changing the law yet.

    Because as it stands yall keep going back to the "drunk" example and well. Inebriated people cannot give consent under the current law so it clearly doesn't change anything there.

    Yeah, the up shot is making current cases possible to try without putting an undue burden on anyone else.

    The actual criminalizing part isn't the point. (And impossible to try anyway)

    Edit: outside of the times where someone honestly and reasonable thought that they had consent but not clear and conscious consent of course.

    Edit 2: balancing act, economy of interests bla bla bla.

    rockrnger on
  • GoumindongGoumindong Registered User regular
    I am not sure what you're saying. If the actual criminalizing isn't the point then it won't have any effect on possibility to try without placing undue burden unless it's actively shifting the burden of proof. Which it can't in a criminal case (though does in these administrative cases, but we weren't talking about those and well preponderance of evidence standard is pretty bad for this kind of thing)

    wbBv3fj.png
  • rockrngerrockrnger Registered User regular
    edited June 2015
    Goumindong wrote: »
    I am not sure what you're saying. If the actual criminalizing isn't the point then it won't have any effect on possibility to try without placing undue burden unless it's actively shifting the burden of proof. Which it can't in a criminal case (though does in these administrative cases, but we weren't talking about those and well preponderance of evidence standard is pretty bad for this kind of thing)

    Ok, so rape is really hard to prove. Even when we got all the evidence in the world it would still be hard to prove because the definition we use for consent looks a lot like (and could reasonably be confused with) fear or inebriation or whatever.

    So, wanting to convict more rapist we change the way we define consent from "wants to have sex" to "wants to have sex and is clear about it and consciously displays that desire" The idea being that consent with those characteristics could looks a lot less like drunk off your ass we could be more sure of no one mistaking them.

    Add some very basic due diligence requirements (this part is more contentious) like "can they stand" and we have made something hard to prove and easy to mistake a little easier to prove and harder to mistake at the cost of some actions now being illegal that weren't but also impossible to prove.

    Sorry if I wasn't clear.

    Edit: oh, and in case it wasn't clear it's possible you think that the cost is too high or not agree with the goals and that is both kosher and copasetic.

    rockrnger on
  • SchrodingerSchrodinger Registered User regular
    Goumindong wrote: »
    Because as it stands yall keep going back to the "drunk" example and well. Inebriated people cannot give consent under the current law so it clearly doesn't change anything there.

    So how many drinks is too many?

  • NyysjanNyysjan FinlandRegistered User regular
    Are people really worried about being prosecuted for rape if they have sex with a willing partner?
    Because i'm not sure how that would actually realistically happen.

    Or worried they might be prosecuted for sexually assaulting someone? (kissing someone without consent is sexual assault)
    Because if so, i have little sympathy to spare.

    ShivahnNeco
  • SmokeStacksSmokeStacks The Myth, the Legend, the Bowman, the Shambler FuckerRegistered User regular
    edited June 2015
    Gonna back the truck up here a little:
    zakkiel wrote: »
    That said, I think that men should be aware of the fear they can cause in women, and should take basic steps to be kind. If you're walking down an empty street at night and there's a woman ahead of you, maybe change sides of the street.

    This is incredibly toxic thinking on your part. You're implying that women everywhere should have a natural fear state of men whenever they are around. You are advocating the idea that men should be feared by women. You are literally part of the problem. Men are not the fucking boogeyman.

    MrMister wrote: »
    You have had more than one friend who said 'no' to a man in a crowded bar, and then the had the man they were talking to respond by punching them? I recognize that men and women's perceptions of danger often do not line up, and that men can be blind to things that alarm women. But that being fully acknowledged and even so, I still find this, as someone who's spent a lot of time in bars (and is friends with plenty of women who do, too) to strain credibility.

    Usually it's a matter of escalation.

    Woman says no, guy starts calling her a entitled bitch.

    She tells him to fuck off, guy assaults her.

    One time it was a punch. More often, it's in the form of a very hard shove.

    I was slapped once by a woman in a bar for refusing her sex even though

    1.) I knew her
    2.) We had had sex before

    All the while she was yelling at me for refusing her sex because she "chose" me. This means two things:

    1.) Women can be scumbags too
    2.) You anecdotes are completely without merit with regards to this conversation
    It's ok though, because so are mine.

    Cambiata wrote: »
    mcdermott wrote: »
    Aioua wrote: »
    Wait though, if I'm reading this right, you did not have sex several times as a young man because you were afraid to make a move and then discover the advances were unwanted. Potentially leaving you not just rejected, but also having committed potentially illegal acts.

    So, wouldn't changing the romantic status quo from "man must read the woman's mind" to "man and woman first share their intentions" solve that problem?

    Assuming we can get Team Women on board, sure.

    Hello, yes, I am already on board, as are a lot of women.

    "Man and woman first share their intentions" is great. I'd prefer "person and person...", but let's start at a baseline. I am glad that there are women onboard. May I recommend the women who are onboard maybe talk to the women who aren't onbard and are paying for shit like this:
    Rftt5Jm.jpg

    and this:
    3N24pOO.jpg

    and jesus fuck especially this:
    all_the_rules_book_cover.jpg

    If you really want to change social norms with regard to consent than you need to stop buying and supporting garbage like this. All it does is feed back into the "Men must conquer, women must be conquered" attitude that ranges from old fashioned but accepted to absolutely disastrous when it comes to consent and sex in general. Men are not hunters and women are not prey, but these deeprooted gender norms aren't going anywhere as long as shitty media like this continues to make hundreds of millions of dollars. We are not fucking cave people anymore.

    If Team Women works on this than I promise Team Men will continue to stigmatize the fedora as well as step up their efforts in making life as difficult as possible for the PUA/Seduction community members. We have to work together here.

    SmokeStacks on
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  • ronyaronya Arrrrrf. the ivory tower's basementRegistered User regular
    people have alcohol blackouts, disagreements over exact narratives in edge cases, face conservative social pressures (esp on young women) to disclaim interest in sexual activity, etc.

    sex happens, a lot; most are not of interest to courts. Of those, many are settled out of court or plea bargained. Of the remainder, these are virtually all unusual cases relative to the median instance of making whoopee.

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  • SchrodingerSchrodinger Registered User regular
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    Incenjucar
  • BethrynBethryn Registered User regular
    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.
    This makes no sense to me.

    The complainant is already bringing a rape charge against the accused. Why is there an onus on them to demonstrate they were capable of giving consent? What progress does it make to the case if they cannot prove they were capable, given they are already alleging that they were either incapable, withheld, or retracted consent, as is the definition of rape?

    AntinumericApothe0sisElvenshae
  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    It is getting very frustrating how people defending affirmative consent keep flipping between "affirmative consent does not require verbal consent" and "just ask for verbal consent" when it is convenient. Either verbal consent is not required (in which case the exact same cues people use under implied consent will constitute affirmative consent) or verbal consent is required (which is not what any law posted in this thread has actually said, and which would require a major change in how people interact).

    Please pick one and defend it, and do not flip to the other.

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  • milskimilski Their Will comes, at last, to Earth, to the Neath, as a storm crosses the sea. Registered User regular
    Regardless of affirmative consent or not, legally, the accuser (or prosecution) is the one who has to prove something beyond a reasonable doubt. Anybody who believes that it changes who has to prove something, rather than what has to be proved, does not understand our legal system (or is continuing to discuss the very narrow preponderance of evidence kangaroo courts used by universities).

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  • NyysjanNyysjan FinlandRegistered User regular
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    It is getting very frustrating how people defending affirmative consent keep flipping between "affirmative consent does not require verbal consent" and "just ask for verbal consent" when it is convenient. Either verbal consent is not required (in which case the exact same cues people use under implied consent will constitute affirmative consent) or verbal consent is required (which is not what any law posted in this thread has actually said, and which would require a major change in how people interact).

    Please pick one and defend it, and do not flip to the other.

    Affirmative consent does not require verbal consent.
    But if you are unsure, asking is quick and easy way to find out.
    What's so difficult about that?

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  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    Nyysjan wrote: »
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    It is getting very frustrating how people defending affirmative consent keep flipping between "affirmative consent does not require verbal consent" and "just ask for verbal consent" when it is convenient. Either verbal consent is not required (in which case the exact same cues people use under implied consent will constitute affirmative consent) or verbal consent is required (which is not what any law posted in this thread has actually said, and which would require a major change in how people interact).

    Please pick one and defend it, and do not flip to the other.

    Affirmative consent does not require verbal consent.
    But if you are unsure, asking is quick and easy way to find out.
    What's so difficult about that?

    Because the former negates the later and results in no change in behavior. All someone has to do is say "she responded to my advances in a way that demonstrated she was affirmatively interested in continuing" instead of the current "she responded to my advances in a way that demonstrated she was interested in continuing". It changes nothing. In fact, it is better to never ask, because then you can't rely on cues and body language to establish consent.

    So we are back to prosecuting first touch more easily as the only net change, and I do not think that makes sense as a policy matter.

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  • zepherinzepherin Registered User regular
    I feel that affirmative consent while a best practice (hell the first time I'm with a partner I usually give them a hey you are ok with this right?), I don't think it should be a requirement, especially because the way it is written a jilted lover could rain it down on you later, well on October 15th you didn't get my affirmative consent, and I was cool with this until you dumped me, and under the law that might make a party guilty.

    On the other hand with colleges, I think there should be a legally enforced best practices from the college. I've been thinking about this a while, and I think a lot of the issues we currently have could be solved by just some common sense measures.

    1st Colleges are required to call the police and offer a rape kit whenever a rape allegation is brought forward.
    2nd Colleges are required to document the allegation, and pay for expedited processing of rape kit.
    3rd Colleges are required to offer a year of trauma counseling.
    4th Any interaction with the college about rape can be recorded by the victim at any time as a preemptive of any state wire tap law.
    5th If the college fails to follow any of the above steps or loses documentation they will be forfeit a quarter million dollars to the victim.

    A lot of the abuses from colleges are from information suppression. Ambiguity in consent is less of an issue than active suppression and covering criminal activity up. Provide a severe disincentive to engage in that activity.

  • NyysjanNyysjan FinlandRegistered User regular
    Nyysjan wrote: »
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    It is getting very frustrating how people defending affirmative consent keep flipping between "affirmative consent does not require verbal consent" and "just ask for verbal consent" when it is convenient. Either verbal consent is not required (in which case the exact same cues people use under implied consent will constitute affirmative consent) or verbal consent is required (which is not what any law posted in this thread has actually said, and which would require a major change in how people interact).

    Please pick one and defend it, and do not flip to the other.

    Affirmative consent does not require verbal consent.
    But if you are unsure, asking is quick and easy way to find out.
    What's so difficult about that?

    Because the former negates the later and results in no change in behavior.
    No it doesn't.
    All someone has to do is say "she responded to my advances in a way that demonstrated she was affirmatively interested in continuing" instead of the current "she responded to my advances in a way that demonstrated she was interested in continuing".
    wut?
    We go from "she didn't say no" to "she said (or otherwise indicated) yes".
    It changes nothing. In fact, it is better to never ask, because then you can't rely on cues and body language to establish consent.
    What?
    So we are back to prosecuting first touch more easily as the only net change, and I do not think that makes sense as a policy matter.
    Are we speaking the same language?

    You seriously are arguing, that sexual assault should not be prosecutable?
    You, actually want sexual assault victims to have hard time getting justice?
    Because that's what i am reading here.

    She wanted it, no prosectution is going to happen.
    And if she does not want it, you should not have done it, and have fun in the court.

    Calica
  • Apothe0sisApothe0sis Have you ever questioned the nature of your reality? Registered User regular
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    Wait, why are these two obligations being contrasted?

    In the status quo case the alleged victim we assume was unconscious or otherwise unable to consent.
    In the affirmative consent case she was sufficiently conscious to be able to recognise she did not wish to consent

    They aren't natural comparisons.

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  • PantsBPantsB Registered User regular
    edited June 2015
    Two legal definitions of consent
    8) Consent.—
    (A) The term “consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.
    (B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).
    (C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.
    273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

    Where no consent obtained

    (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
    (a) the agreement is expressed by the words or conduct of a person other than the complainant;
    (b) the complainant is incapable of consenting to the activity;
    (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
    (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
    (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

    The first is the US federal definition, the second is the Canadian. The Canadian definition is not what is described as affirmative consent in California(at the University level). Both effectively define consent by not nonconsent.

    PantsB on
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  • Apothe0sisApothe0sis Have you ever questioned the nature of your reality? Registered User regular
    zakkiel wrote: »
    rockrnger wrote: »
    zakkiel wrote: »
    rockrnger wrote: »
    zakkiel wrote: »
    Deans wrote: »
    This idea that explicit communication is a "turn-off" really needs to go away. Just fuckin talk to your partner. If they find that unattractive, talk about that. If they find talking weird, keep talking. Quit silently walking in emotional minefields, ask the mines where they are.

    Again, why do people in this thread think they have a right to tell others how to have sex? Verbal communication is not how everyone does it, it is not a requirement that to have healthy sex both partners or even one must be actively vocal. The sex advice column that keeps popping up in this thread is disingenuous, unwanted, and seems based around shoehorning people into very specific and narrow ways of consent and communication.

    It's almost as if 6 billion people have different desires and different ways of communicating those desires.

    Hey, it's great that you don't need verbal communication to have good, consensual sex. But for a lot of other people, they have a hard time letting their partner know what really revs their motor or what turns them off - or worse, what things might trigger a panic attack due to past trauma. And a large part of that is because our society has made it really taboo for partners to just sit down and say "this is what I like/don't like" when it comes to sex. Which, in turn, winds up making sex a lot less enjoyable for those people - of both genders.

    So, I don't see where you're being told that you're being shoehorned in anywhere.

    Look at the quote I responded to (and note it is not the first of its sort in this thread). It posits that verbal communication is a must, that we should "just fucking talk" to our partners, that those who find explicit talking a turnoff are wrong. Human sexuality is not simple. Some people enjoy talking, others couldn't care, others find it ridiculously silly and a big turn off. Some people love spontaneity, others love the confidence of one partner or the other making a move, there's a ton variables here.

    Your point is that we shouldn't assume that non-talkers like to talk.

    So the alternative is to assume that the people who like to talk are non-talkers?

    How exactly do you know which group someone belongs to if they never say anything?
    Saying that people should just "get over it" and talk is silly. Not everyone works that way, not everyone wants to work that way. If that messes with our discussion on consent, well, that's messy humanity for you messing up our clean theories again.

    There's an interesting reverse double standard here.

    Big intimidating dude is alone with a girl 1/3 his size. He's very aggressive and very drunk, and keeps pawing away at her.

    In this scenario, we demand that the girl clearly express that she's uncomfortable and to tell him no and to fight back in this scenario, even though she's legitimately scared for her own safety and she's worried that rejection will result in physical retaliation. By refusing to say no, we assume it's consensual.

    OTOH, we do not expect the guy to actually make sure that the girl is okay with being there. Because dammit, not everyone likes to talk!

    We're supposed to sympathize with the people who are silent because it's sexy. And forcing them to talk might make things slightly less for about ten seconds before you move on and proceed as normal.

    But we're not supposed to sympathize with the people who are silent because they're scared. And forcing them to talk might result in physical violence and a much more violent rape compared to what would have happened if they said nothing at all.

    Why is that?

    Because being large and male does not make you a violent rapist?
    rockrnger wrote: »
    zakkiel wrote: »
    rockrnger wrote: »
    zakkiel wrote: »
    MrMister wrote: »
    Deans wrote: »
    This idea that explicit communication is a "turn-off" really needs to go away. Just fuckin talk to your partner. If they find that unattractive, talk about that. If they find talking weird, keep talking. Quit silently walking in emotional minefields, ask the mines where they are.

    Again, why do people in this thread think they have a right to tell others how to have sex? Verbal communication is not how everyone does it, it is not a requirement that to have healthy sex both partners or even one must be actively vocal. The sex advice column that keeps popping up in this thread is disingenuous, unwanted, and seems based around shoehorning people into very specific and narrow ways of consent and communication.

    It's almost as if 6 billion people have different desires and different ways of communicating those desires.

    I strongly agree.

    I'd also like to echo an earlier post from mcdermott in this connection
    mcdermott wrote:
    But you add some back when you require "enthusiastic participation" particularly when it must be "ongoing and continuous." It's entirely possible to miss that somebody has become a less enthusiastic participant, depending on act and position. Granted, that may make you a shitty lover. But now it may make you a rapist as well.

    Where as before requiring the desire to stop be affirmatively expressed was a much less ambiguous standard once you're in the act(s).


    Edit: Or maybe I'm the only one who's had some less than stellar sex, including with longtime partners.

    I'm sure that's possible.

    Or perhaps the only one openly admitting it.

    Even if we accept 'continuously communicate' as good sex advice, that's neither here nor there when it comes to how we classify rape. Uncomfortable, awkward, and unethusiastic sex isn't rape, any more than uncomfortable, awkward, and unenthusiastic hugs are battery.

    Common misconception:

    The Affirmative Consent law does not "classify rape."

    Nor does it require "continuous communication."

    So what situation is currently legal that affirmative consent criminalizes?

    Ok, what the accused think (or would reasonably think) is all that matters law wise.

    Right now it's basically didn't think no and this changes it to thought yes.

    No, right now the standard is based on external behavior. You're saying that affirmative consent moves it entirely into the subjective state of the sexual partners?

    Counterintuitive I know but you have to prove that accused knew what they were doing. That they have a "guilty mind"

    In general, however, the accused does not have to prove whether or not the accuser was having fun. Because it's impossible.

    What having fun got to do with it?

    http://legal-dictionary.thefreedictionary.com/Guilty+mind

    So the up shot of stuff like this is that say someone who has sex with someone else who is black out drunk would have a harder time claiming that they honestly didn't know they couldn't consent.

    You're confusing mens rea - in the mind of the perpetrator - with the mind of the victim. AFAIK, there are no crimes that currently depend solely on the attitude of the victim, divorced from external behavior.

    Exactly, again this changes no means no to yes means yes. But the up shot is that it is harder to honestly mistake a yes than a no (through intoxication or fear or whatever)

    No it doesn't, because as frequently said in this very thread, a verbal yes is not required. But of course no particular nonverbal behavior qualifies as consent to sex either. No means no is clear and unambiguous: if someone says no or stop, you must stop. Affirmative consent means that your outer behavior is not consent. Consent is no longer an action, but a purely subjective state of mind removed from legal scrutiny.


    I don't really understand what we were supposed to take from this video other than Dennis is an even worse person than Mac.

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  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    Nyysjan wrote: »
    Nyysjan wrote: »
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    It is getting very frustrating how people defending affirmative consent keep flipping between "affirmative consent does not require verbal consent" and "just ask for verbal consent" when it is convenient. Either verbal consent is not required (in which case the exact same cues people use under implied consent will constitute affirmative consent) or verbal consent is required (which is not what any law posted in this thread has actually said, and which would require a major change in how people interact).

    Please pick one and defend it, and do not flip to the other.

    Affirmative consent does not require verbal consent.
    But if you are unsure, asking is quick and easy way to find out.
    What's so difficult about that?

    Because the former negates the later and results in no change in behavior.
    No it doesn't.
    All someone has to do is say "she responded to my advances in a way that demonstrated she was affirmatively interested in continuing" instead of the current "she responded to my advances in a way that demonstrated she was interested in continuing".
    wut?
    We go from "she didn't say no" to "she said (or otherwise indicated) yes".
    It changes nothing. In fact, it is better to never ask, because then you can't rely on cues and body language to establish consent.
    What?
    So we are back to prosecuting first touch more easily as the only net change, and I do not think that makes sense as a policy matter.
    Are we speaking the same language?

    You seriously are arguing, that sexual assault should not be prosecutable?
    You, actually want sexual assault victims to have hard time getting justice?
    Because that's what i am reading here.

    She wanted it, no prosectution is going to happen.
    And if she does not want it, you should not have done it, and have fun in the court.

    What I am saying is that the "or otherwise indicated" swallows up the entire concept. What differentiates implied affirmative consent from implied consent? They seem functionally identical to me.

    If someone is explicitly intending to have sex with someone who they think may not really want to (or who they think will probably go along but may say no if asked directly), they are incentivized not to ask under an affirmative consent model because until they ask they can infer intent from body language.

    This leads to my last point. If affirmative consent doesn't really change anything vs implied consent, then the prudent course of action for a potential victim remains saying no. The only difference that I can see under the affirmative consent model is greater ability to prosecute the first touch, before you have the chance to say no. But first touches include common romantic gestures in appropriate contexts like a date. So what I see is a shift in law that doesn't help with the problem. It just seems to potentially implicate minor acts that I do not think should be implicated at all.

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  • PantsBPantsB Registered User regular
    Under the University’s Policy on Sexual Harassment and Sexual Violence, consent is informed. Consent is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent is voluntary. It must be given without coercion, force, threats, or intimidation. Consent means positive cooperation in the act or expression of intent to engage in the act pursuant to an exercise of free will. Silence does not mean consent.

    Consent is revocable. Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Even in the context of a relationship, there must be mutual consent to engage in sexual activity. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. Once consent is withdrawn, the sexual activity must stop immediately.

    Consent cannot be given when a person is incapacitated. A person cannot consent if they are unconscious or coming in and out of consciousness. A person cannot consent if they are under the threat of violence, bodily injury or other forms of coercion. A person cannot consent if their understanding of the act is affected by a physical or mental impairment.
    The bold is the part people find problematic. This is from UC Berkley's definition of consent.

    Its identical with the normal standard (in both the US and Canada) except for the bolded. It contradicts the italics. By defining the form in which consent must be expressed, fairly large swaths of non-criminal, non-harmful, fairly mainstream sexual activity have been equated to rape.

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  • SurfpossumSurfpossum A nonentity trying to preserve the anonymity he so richly deserves.Registered User regular
    I kind of feel like we should have two separate tracks, affirmative consent as a social standard and as a legal standard.

    Because while I understand the qualms people have about satisfactorily proving consent in a court of law, it should be really bloody easy to satisfactorily prove consent to one's self.

    If it isn't, why are you proceeding.

    (And stop with the verbal communication makes it awkward thing; if you don't want to expressly ask permission AND don't want to rely on nonverbal cues, talk about it generally at some point beforehand. (This isn't meant to be advice, just a response to the claim that communication will kill the mood.))

    I find the social objections to the idea of affirmative consent far more worrisome than the legal ones.

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  • CalicaCalica Registered User regular
    edited June 2015
    Nyysjan wrote: »
    Nyysjan wrote: »
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    It is getting very frustrating how people defending affirmative consent keep flipping between "affirmative consent does not require verbal consent" and "just ask for verbal consent" when it is convenient. Either verbal consent is not required (in which case the exact same cues people use under implied consent will constitute affirmative consent) or verbal consent is required (which is not what any law posted in this thread has actually said, and which would require a major change in how people interact).

    Please pick one and defend it, and do not flip to the other.

    Affirmative consent does not require verbal consent.
    But if you are unsure, asking is quick and easy way to find out.
    What's so difficult about that?

    Because the former negates the later and results in no change in behavior.
    No it doesn't.
    All someone has to do is say "she responded to my advances in a way that demonstrated she was affirmatively interested in continuing" instead of the current "she responded to my advances in a way that demonstrated she was interested in continuing".
    wut?
    We go from "she didn't say no" to "she said (or otherwise indicated) yes".
    It changes nothing. In fact, it is better to never ask, because then you can't rely on cues and body language to establish consent.
    What?
    So we are back to prosecuting first touch more easily as the only net change, and I do not think that makes sense as a policy matter.
    Are we speaking the same language?

    You seriously are arguing, that sexual assault should not be prosecutable?
    You, actually want sexual assault victims to have hard time getting justice?
    Because that's what i am reading here.

    She wanted it, no prosectution is going to happen.
    And if she does not want it, you should not have done it, and have fun in the court.

    What I am saying is that the "or otherwise indicated" swallows up the entire concept. What differentiates implied affirmative consent from implied consent? They seem functionally identical to me.

    If someone is explicitly intending to have sex with someone who they think may not really want to (or who they think will probably go along but may say no if asked directly), they are incentivized not to ask under an affirmative consent model because until they ask they can infer intent from body language.

    This leads to my last point. If affirmative consent doesn't really change anything vs implied consent, then the prudent course of action for a potential victim remains saying no. The only difference that I can see under the affirmative consent model is greater ability to prosecute the first touch, before you have the chance to say no. But first touches include common romantic gestures in appropriate contexts like a date. So what I see is a shift in law that doesn't help with the problem. It just seems to potentially implicate minor acts that I do not think should be implicated at all.

    This is the mindset of someone who would rather commit rape than miss out on sex. Like, that is literally what you are saying: "If I ask, she they might say no, so it's better not to ask."

    edit: I realize you were using a hypothetical third person. I'm not accusing you, @spacekungfuman, of being a latent rapist.

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  • Jealous DevaJealous Deva Registered User regular
    mcdermott wrote: »
    Forar wrote: »
    Apothe0sis wrote: »

    This doesn't seem to relate to the topic at hand except tangentially. It seems not a good set of statistics though.

    There's a dating site called OKCupid. It has an often obnoxious set of questions you can answer to allegedly help determine compatibility.

    One is "No means No:

    A) Always
    B) Sometimes it's a yes in disguise"

    I've seen women with profiles that answer B more often than I care to talk about.

    For the record, mine is "Always, otherwise we're going to need a safeword" (you can append qualifiers to your answers).

    Which is basically just an anecdotal way to say that it's a shame that those statistics exist, but I'm not surprised. Some of the numbers for guys though, wtf? I consider it a point of good conditioning that the few times anyone has said no I reflexively freeze in place (it's never been a big deal, usually something like 'your hand is on my hair please move it').

    As to the matter of affirmative consent, I am all on board with some enthusiastic applications of engagement and consent. As a guy I actively hate feeling like I always have to be initiating things, and I say this as someone who has turned other people down or backed out of situations I thought there was any fuzziness present. I've cock-blocked myself a number of times, and don't regret any of them.

    Yeah, I've seen enough polling like that to know that "no" often means "ask me again, I don't want to look too easy." Or the occasional "I want you to take charge" (insert Louis CK bit here). All kinds of fun gender norms involved there.

    And those norms are not anything I'd miss. Not in the slightest. But as detailed before, I'm wary of using the law (or punitive admin policy) to change them. You're going to crack some eggs making that omelet.

    I can affirm the Louis CK thing happens in real life, because similar things have actually happened to me on two seperate occasions, and I'm sure have happened other times where I just was not in the situation to have a conversation about it with the person afterwards. In the long run, I can't say I'd ever act any different in the situation. If I ask you if you want to make out with my arm around you, or go to unzip your pants or remove your panties after we have been making out with shirts off, or whatever, and you say no or stop to that, I'm not going forward, period, nor am I going to 'try again' a few minutes later. But I have been in situations where I've had that given as a reason for not continuing dating after the first date or couple of dates (as in, "I didn't think you were interested in me because I went home with you but you didn't try to have sex with me" or "you weren't aggressive enoughin bed, I wanted you to just tear my clothes off")

    I've been in relationships involving rough sex or veering into light S&M, and the approriate way to handle it is to have a very frank and honest discussion about whats going to happen, what everyone's expectations are, what everyone is comfortable with, safe words, etc prior to the event happening. Having an ongoing, comfortable sexual relationship prior is good, too. Expecting it unprompted on the first sexual experience between two people is frankly dangerously insane, but there are women out there with those kinds of expectations.

    minirhyderCalica
  • Apothe0sisApothe0sis Have you ever questioned the nature of your reality? Registered User regular
    Calica wrote: »
    Nyysjan wrote: »
    Nyysjan wrote: »
    Right now, the prosecution has a burden to prove that the the victim was incapable of consent. Which is basically proving a negative. Short of being passed out, how do you go about that?

    Being inebriated might technology qualify as rape under current law, but good luck proving it. Under the current standard, the victim says she was incapable of consent, and the prosecution says she was. How exactly do you settle that?

    There's a reason why field sobriety tests don't test for drunkenness. They test for sobriety. Even lab equipment can only test for legal drunkeness, they can't test for incapacitation.

    Imagine if we lived in opposite land, where it was it's illegal to drive while sober. Not just legally sober, but mentally sober. The officer gives the driver a test and says, "Here are some things you can only do drunk, and I'm going to arrest you if you fail." How would you go about designing that test? More importantly, how do you rule out the possibility that the driver is simply faking it? Because that's what rape victims have to deal with.

    Affirmative consent means you ask ask the victim to prove that she was capable, rather than asking the victim to prove that she was incapable. If the encounter was consensual, then she should be happy to say that at the time of the encounter.

    Once again: The burden of proof isn't on the person who initiated the sexual encounter to prove that his partner consented. The burden of proof is on the partner to prove consent. The only thing the initiator has to do is ask. If the initiator asks his partner for consent and his partner fails to provide it, then assume that she is either unable or unwilling. If she does provide it, then you don't have much to worry about from affirmative consent laws, because you can relay that fact later on.

    It is getting very frustrating how people defending affirmative consent keep flipping between "affirmative consent does not require verbal consent" and "just ask for verbal consent" when it is convenient. Either verbal consent is not required (in which case the exact same cues people use under implied consent will constitute affirmative consent) or verbal consent is required (which is not what any law posted in this thread has actually said, and which would require a major change in how people interact).

    Please pick one and defend it, and do not flip to the other.

    Affirmative consent does not require verbal consent.
    But if you are unsure, asking is quick and easy way to find out.
    What's so difficult about that?

    Because the former negates the later and results in no change in behavior.
    No it doesn't.
    All someone has to do is say "she responded to my advances in a way that demonstrated she was affirmatively interested in continuing" instead of the current "she responded to my advances in a way that demonstrated she was interested in continuing".
    wut?
    We go from "she didn't say no" to "she said (or otherwise indicated) yes".
    It changes nothing. In fact, it is better to never ask, because then you can't rely on cues and body language to establish consent.
    What?
    So we are back to prosecuting first touch more easily as the only net change, and I do not think that makes sense as a policy matter.
    Are we speaking the same language?

    You seriously are arguing, that sexual assault should not be prosecutable?
    You, actually want sexual assault victims to have hard time getting justice?
    Because that's what i am reading here.

    She wanted it, no prosectution is going to happen.
    And if she does not want it, you should not have done it, and have fun in the court.

    What I am saying is that the "or otherwise indicated" swallows up the entire concept. What differentiates implied affirmative consent from implied consent? They seem functionally identical to me.

    If someone is explicitly intending to have sex with someone who they think may not really want to (or who they think will probably go along but may say no if asked directly), they are incentivized not to ask under an affirmative consent model because until they ask they can infer intent from body language.

    This leads to my last point. If affirmative consent doesn't really change anything vs implied consent, then the prudent course of action for a potential victim remains saying no. The only difference that I can see under the affirmative consent model is greater ability to prosecute the first touch, before you have the chance to say no. But first touches include common romantic gestures in appropriate contexts like a date. So what I see is a shift in law that doesn't help with the problem. It just seems to potentially implicate minor acts that I do not think should be implicated at all.

    This is the mindset of someone who would rather commit rape than miss out on sex. Like, that is literally what you are saying: "If I ask, she they might say no, so it's better not to ask."

    edit: I realize you were using a hypothetical third person. I'm not accusing you, @spacekungfuman, of being a latent rapist.

    This is a very uncharitable distortion of SKFM's position

    And I am not sure what comfort the caveat "...not that I am calling you a latent rapist" provides when attached to the statement "this is the mindset of someone who would prefer to commit rape than miss out on sex".

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  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    Surfpossum wrote: »
    I kind of feel like we should have two separate tracks, affirmative consent as a social standard and as a legal standard.

    Because while I understand the qualms people have about satisfactorily proving consent in a court of law, it should be really bloody easy to satisfactorily prove consent to one's self.

    If it isn't, why are you proceeding.

    (And stop with the verbal communication makes it awkward thing; if you don't want to expressly ask permission AND don't want to rely on nonverbal cues, talk about it generally at some point beforehand. (This isn't meant to be advice, just a response to the claim that communication will kill the mood.))

    I find the social objections to the idea of affirmative consent far more worrisome than the legal ones.

    I don't think anyone is saying ignore nonverbal cues. Just that the nonverbal cues you would rely on under affirmative consent are identical to passive consent. It doesn't really change anything. Under either model, you still need to effectively say no in order to make it clear that you don't want to continue.

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    Well, this was as much of a giant shithouse as it always is. Good job everyone!

    geth, close the thread.

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